[EL] Electoral College Tie "Nightmare"

[Samuel Bagenstos]

Is there any normative justification for using the
state-congressional-delegations-voting procedure as a backup in the case of
an Electoral College tie?  Particularly in a world where people do go to
the polls in every state to cast ballots for president?  (That it's been in
the Constitution for 219 years is a fact that explains why the backup
procedure is legally compelled, but it doesn't count as a normative
justification in my view.)  All of the normative justifications for the
Electoral College have a strong scent of rationalization these days, but
the backup stretches the rationalization yet further (if I may mix a
metaphor).

On Thu, Apr 18, 2019 at 8:29 AM Josh Douglas <joshuadouglas at uky.edu> wrote:

> Indeed, the real "nightmare" scenario -- from a constitutional perspective
> -- is if a candidate does not receive the votes of 25 state delegations if
> the race is thrown to the House, as the 12th Amendment requires a
> "majority." Ned Foley (with a student) has done some interesting work
> <https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v64_i2_ncolvin_efoley.pdf>
> on this true potential constitutional crisis.
>
> Joshua A. Douglas
> Thomas P. Lewis Professor of Law
> University of Kentucky College of Law
> 620 S. Limestone
> Lexington, KY 40506
> 859-257-4935
> joshuadouglas at uky.edu
> Twitter: *@JoshuaADouglas <https://twitter.com/JoshuaADouglas>*
>
> *   Find me at www.JoshuaADouglas.com <http://www.joshuaadouglas.com/>.*
>
> On Thu, Apr 18, 2019 at 1:33 AM Doug Spencer <dougspencer at gmail.com>
> wrote:
>
>> *The country would be ill-prepared in practice to manage a tie election
>> in any circumstance. In present circumstances, the result could be very
>> dark.*
>>
>> Setting aside the point that an electoral college outcome of 270-268 is
>> not an "effective tie" since 270 is the threshold for winning, I'm not
>> convinced the country is ill-prepared to manage an actual 269-269 tie. The
>> country was ill-prepared in 1800, to be sure, but the 12th amendment tells
>> us exactly how this scenario would play out:
>>
>> ...if no person have such majority [of electoral college votes], then
>>> from the persons having the highest numbers not exceeding three on the list
>>> of those voted for as President, the House of Representatives shall choose
>>> immediately, by ballot, the President. But in choosing the President, the
>>> votes shall be taken by states, the representation from each state having
>>> one vote; a quorum for this purpose shall consist of a member of members
>>> from two-thirds of the states, and a majority of all states shall be
>>> necessary to a choice.
>>
>>
>> If the 2020 election ends in an electoral college tie, each state
>> delegation in the House gets one vote to decide the winner. By my count,
>> although Democrats control the House by 38 seats, the breakdown of state
>> delegations by party (presuming no deaths/resignations/special elections)
>> would favor a Trump re-election:
>>
>> REP by 2+ REP by 1 SPLIT DEM by 1 DEM by 2+
>> 25 1 1 3 20
>> (FL) (MI) (AZ, CO, PA)
>>
>> A political outcome like this might *feel *controversial, but this rule
>> has been embedded in the Constitution for 219 years, specifically for this
>> "nightmare" scenario.
>>
>> As a matter of trivia, had the Supreme Court abstained from interjecting
>> in the 2000 election, AND the Florida electoral college votes been
>> contested, AND the 12th amendment been triggered, the breakdown of state
>> delegations favored a Bush victory (one abstention from a split state would
>> have tipped the scales):
>> REP SPLIT IND DEM
>> 25 4 1 20
>> (AR, IL, NV, MD) (VT)
>>
>> ---
>>
>> *Douglas M. Spencer*
>>
>> *Professor of Law & Public Policy*
>>
>> University of Connecticut
>>
>>
>> *Visiting Professor, 2018-2019*
>>
>> Harris Public Policy
>>
>> University of Chicago
>>
>> (415) 335-9698 | www.dougspencer.org
>>
>>
>>
>> *Social Impact, Down to a Science.*
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-- 
Samuel Bagenstos
sbagen at gmail.com
Twitter: @sbagen
University of Michigan homepage:
http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
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